Citation Nr: 21016197 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-35 618 DATE: March 22, 2021 ORDER Service connection for a disability manifested by loss of veins in the left testicle is denied. Service connection for a disability manifested by loss of use of the right testicle is denied. A rating in excess of 10 percent for service-connected epididymitis is denied. A rating in excess of 10 percent for service-connected restless leg syndrome, right lower extremity, is denied. A rating in excess of 10 percent for service-connected restless leg syndrome, left lower extremity, is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a disability manifested by loss of veins in the left testicle began during active service or is otherwise related to an in-service injury or disease, to include as secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that a disability manifested by loss of use of the right testicle began during active service or is otherwise related to an in-service injury or disease, to include as secondary to a service-connected disability. 3. The Veteran’s epididymitis was not manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. 4. The Veteran’s restless leg syndrome of the right lower extremity was manifested by no more than moderate compulsive tics. 5. The Veteran’s restless leg syndrome of the left lower extremity was manifested by no more than moderate compulsive tics. 6. The Veteran’s service-connected disabilities did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by the loss of veins in the left testicle are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a disability manifested by the loss of use of the right testicle are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected epididymitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.115, Diagnostic Code 7525. 4. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected restless leg syndrome, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. 4.1, 4.3, 4.20, 4.27, 4.124a, Diagnostic Code (DC) 8103. 5. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected restless leg syndrome, left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. 4.1, 4.3, 4.20, 4.27, 4.124a, Diagnostic Code (DC) 8103. 6. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to July 1971. He died in December 2019. His surviving spouse has been substituted for him in this appeal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decisions dated April 2015, September 2015, and February 2016 by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded in July 2020 for further development. Service Connection The Veteran contended that each of his testicles was removed. In July 2009, he reported that he had epididymal/hernia surgery in April 2009, and that he was still sore after he had veins and the left testicle removed. In April 2011, he once again reported that he had surgery to the left side abdomen for a hernia, and that as a result of an infection, he had four veins and his left testicle removed. In a September 2015 statement, he stated that he had the loss of his right testicle and four veins in his leg due to infection. He stated that the operations occurred in April 2009. He stated that he was not sure if the infection was due to chronic epididymitis or inguinal hernias. In October 2015, he reported chronic scrotal pain following removal of a testicle (he did not specify left or right) 20 years earlier due to epididymitis. The record is complicated by the fact that a July 2015 VA examiner stated that the Veteran had chronic epididymitis with surgical removal of the testes and epididymis in 2008. This same mistake was made by a July 2009 VA examiner who stated that the Veteran underwent left inguinal hernia repair with removal of the left testicle in April 2009. A review of the April 2009 surgical records, however, reflects that the neither testicle was removed. An April 2010 treatment report reflects that the Veteran thought that he had an orchiectomy, but he did not. Additionally, a May 2010 treatment report reflects that the Veteran complained of pain in both testicles. Upon examination, both testicles were tender to touch. A June 2010 ultrasound showed that both testicles were present. Regarding the veins removed from the Veteran’s left testicle, the evidence fails to reflect that this was due to service. To the contrary, the April 2009 surgery took place decades after service, and it occurred as a result of a nonservice-connected left inguinal hernia. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In this case, the Veteran appears to contend (though his exact contentions are difficult to discern) that removal of veins is due to epididymitis; however, as noted above, the records reflect that the removal of veins was due to repair of a nonservice-connected inguinal hernia. Regarding the right testicle, despite the Veteran’s contention that it was removed, the preponderance of the evidence fails to reflect that. The Veteran underwent a VA examination in January 2016. He reported that he had had a total of five inguinal hernia repairs to the left and right groin. He further reported that an infection occurred from the mesh following the most recent inguinal hernia repair in 2009. Upon examination, the examiner noted that the Veteran’s right testicle was smaller than the left testicle. It had not been removed. The examiner found that there was no evidence to support a diagnosis of loss of use at that time. He stated that he was unable to prove the function or dysfunction of the Veteran’s right testicle. The appellant (and the Veteran before her) believes that the Veteran’s loss of veins in the left testicle and the alleged loss of use of the right testicle is proximately due to service or is the result of (or aggravated beyond its natural progression by) a service-connected disability. They are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the appellant and the Veteran, because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the January 2009 VA examiner. The Board finds that a preponderance of the evidence weighs against finding that the Veteran had disabilities manifested by loss of use of the right testicle and loss of veins in the left testicle due to service or any service-connected disability. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A rating in excess of 10 percent for service connected epididymitis is denied. The Veteran’s service-connected epididymitis has been rated by the RO under the provisions of Diagnostic Code 7525, which directs to rate as urinary tract infection. A compensable (10 percent) rating is warranted where the urinary tract infection required long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. The Veteran underwent a VA examination in April 2015. He reported that inguinal hernias caused his epididymitis in 1969. He had multiple surgeries for hernias. The most recent surgery was 1976. He stated that the mesh put in (for the hernias) became infected many times between 1976 and 2009. He stated that during that time (1976-2009) he was prescribed antibiotics. Symptoms at the time of the April 2015 examination consisted of shooting pain in the testicle area. He reported that he took continuous medication (gabapentin) for the disability. He did not have a voiding dysfunction. He did not have a urinary tract infection or kidney infection. There had been no drainage, hospitalization, or continuous intensive management of the disability. He had erectile dysfunction, but it was not attributable to his epididymitis. There was no treatment aside from the gabapentin for pain. Upon examination, the epididymis was tender to palpation. The functional impact was that the pain caused loss of focus on work tasks. The Veteran submitted a June 2015 correspondence in which he disputed some of the findings in the examination report. He stated that the examiner did not conduct a thorough examination, and that he only spoke to the Veteran for five minutes. The Veteran stated that he had been hospitalized approximately two times per year; that he had had chronic drainage from his penis and groin area for the prior 10 years, which required him to change undergarments 3-4 times per day; and that he has chronic swelling in his testicles and groin. The Veteran underwent a VA examination in July 2015. The examiner stated that the Veteran had epididymitis in 2008. It was identified as acute and resolved. The Veteran however, reported drainage and pain. The examiner noted that the Veteran had a history of epididymitis which was treated with long-term drug therapy (antibiotic suppression therapy, Amoxicillin). There had been no hospitalizations or any intensive management (either continuous or intermittent) in the past 12 months. The right epididymis was noted to be absent, and the left epididymis was tender to palpation. The examiner found that the Veteran’s male reproductive system did not impact his ability to work. The Veteran underwent another VA examination in January 2016. He reported erectile dysfunction, urine retention, and penile discharge. The examiner stated that the Veteran’s treatment plan did not include taking continuous medication. He was noted to have a voiding dysfunction manifested by the inability to voluntarily pass urine. It did not cause urine leakage or urinary frequency. It required intermittent catheterization. The epididymis was not examined per the Veteran’s request. Treatment records dated October 2015 and April 2016 specifically state “Normal penis without drainage.” Another April 2016 treatment report reflects that the Veteran reported trouble voiding “which he blames on old epididymitis.” The examiner diagnosed urinary symptoms, and pain at hernia repair site. The Veteran was not diagnosed as having epididymitis. A May 2016 treatment report reflects that the Veteran reported a whitish discharge from his penis 3-4 times per month. It was not associated with the Veteran’s epididymitis. Finally, a July 2018 treatment report reflects a three month history of pain with urination. He stated that he had to catheterize in hospital. The Veteran’s epididymitis was rated as 10 percent disabling. In order for a higher rating to be warranted, his disability would have to be manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. The Board has thoroughly reviewed the treatment records and not found evidence of recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Moreover, after the VA provided the Veteran with another VA examination in January 2016 (after he was not satisfied with his April 2015 VA examination), he specifically requested that the examiner not examine the epididymitis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 percent for epididymitis must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ratings in excess of 10 percent for service-connected restless leg syndrome of the right and left lower extremities, is denied. The Veteran’s service-connected restless leg syndrome has been rated by the RO under the provisions of Diagnostic Code 8103. Under this regulatory provision, a rating of 0 percent is warranted for a mild convulsive tic. A rating of 10 percent is warranted for a moderate convulsive tic. A rating of 30 percent is warranted for a severe convulsive tic. Note: depending upon frequency, severity, muscle groups involved. The Veteran underwent a VA examination in April 2015. He described involuntary moving or “jerking” of his legs at night. He stated that he had been prescribed Flexeril, which had not helped. Upon examination, the Veteran did not have any muscle weakness of the lower extremities. He reported sleep disturbance in the form of persistent daytime hypersomnolence. He also reported erectile dysfunction not related to his restless leg syndrome. Neurological examination was normal. Deep tendon reflexes were normal. He did not report the use of any assistive devices for locomotion. He reported that the functional impact of his restless legs syndrome was that it caused poor sleep and next-day fatigue. The Veteran submitted a June 2015 correspondence in which he stated that he was not provided with a thorough examination. He stated that his condition was severe and that it should be rated as 30 percent disabling. The Veteran underwent another VA examination in October 2015. Once again, the Veteran did not have any muscle weakness of the lower extremities. Deep tendon reflexes were normal. He had complaints of left leg crawling and jerking, especially at night. He reported restlessness and insomnia. He also reported that his legs went out on him, which the examiner noted was not a symptom of restless leg syndrome. The Veteran stated that he regularly used braces and that he constantly used a cane to aid in locomotion. He stated that these assistive devices were for leg and muscle weakness, which the examiner once again stated were not symptoms of restless leg syndrome, but could be due to the Veteran’s age. The Board has thoroughly reviewed the treatment records and not found evidence of severe restless leg syndrome. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claim for ratings in excess of 10 percent for restless leg syndrome of the right and left lower extremities must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU is denied. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran’s service-connected included persistent depressive disorder, evaluated as 50 percent disabling; chronic epididymitis, evaluated as 10 percent disabling; restless leg syndrome of the right lower extremity, evaluated as 10 percent disabling; and restless leg syndrome of the left lower extremity, evaluated as 10 percent disabling. His combined rating was 60 percent. See 38 C.F.R. § 4.25. Thus, the Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board, however, must still determine whether the Veteran’s service-connected disabilities resulted in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim for a TDIU. The evidence does not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities. The Veteran’s most dominant disability was his depression. At his last VA examination for depression, dated March 2018, the examiner found that his depression would result in occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran would have difficulty establishing and maintaining effective work and social relationships; however, there was no indication that the disability would prevent him from securing or following a substantially gainful occupation. He stated that he last worked in 1996. The November 2015 examiner failed to suggest that the Veteran’s restless leg syndrome would prevent him from securing or following a substantially gainful occupation. To the contrary, it appeared that the Veteran’s complaints of leg weakness (which was not shown on examination) was not a symptom of restless leg syndrome and was potentially due to age. Finally, at the Veteran’s most recent examination for his epididymitis, he specifically declined examination of the epididymis. In a Social Security Administration Disability Report, the Veteran was asked to list all the physical or mental conditions (including emotional or learning problems) that limit his ability to work. He listed back and abdominal problems, hernia, skin problems, chronic obstructive pulmonary disorder (COPD), and restless leg syndrome. The Board notes that the Veteran did not list his depression as a condition affecting his ability to work. Moreover, only one of the listed conditions (restless leg syndrome) is service connected. The Social Security records also reflect that the Veteran completed 12th grade. His most recent job was as a nurse’s aid from 1993-1996. In sum, there is no persuasive evidence of record demonstrating that the Veteran’s service-connected disabilities alone render him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the claim for a TDIU is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.